Phoenix does not merely seek to make Joanna and Breanna a passive courier of its message, but seeks to commandeer their very minds and bodies to envision, design, create, and convey its message. It does this via § 18-4(B)(1)-(2), which prohibits places of public accommodation like Brush & Nib from declining to provide any accommodations or privileges to any person “based on” sexual orientation. Because Joanna and Breanna create custom artwork celebrating marriages between one man and one woman, Phoenix interprets § 18-4(B)(1)-(2) as requiring them to create custom artwork celebrating same-sex marriages….
…Phoenix seeks to foist this very personal and involved expressive process on Joanna and Breanna to produce artwork promoting a ritual (same-sex wedding ceremony) and a union diametrically opposed to their religious beliefs. For example, Phoenix would force Joanna and Breanna to create works like wedding invitations, wedding programs, decorative signs, marriage certificates, and even marriage vows for same-sex marriages….
In so doing, Phoenix would force Joanna and Breanna not just to hand-paint designs promoting the objectionable event — that is bad enough — but to hand-write words that would:
- request people to provide “the pleasure of [their] company at the celebration of” a same-sex marriage;
- encourage people to “share in the joy of” a same-sex marriage; and • explain that “God has joined together” a same-sex couple as “one flesh” in a marital union.
It is hard to fathom a more flagrant violation of one’s freedom of mind than to force someone diametrically opposed to the above ideas — as Joanna and Breanna are — to create messages from scratch supporting those ideas and to convey them to others.
If this violation of Joanna and Breanna’s rights is allowed to continue unchecked, the implications are stark, especially since public accommodation laws can continue to expand, and government policy can change with the winds of popular opinion. Even as currently written, § 18-4(B)(1)-(2) could be used to compel:
- an Orthodox Jewish woman who sings at special occasions to sing at an Easter Sunday service celebrating the resurrection of Jesus Christ;
- a lesbian musician who plays background music at fundraisers to perform at a fundraiser for the Westboro Baptist Church; and
- a gay web designer to create a website for a Mormon who wishes to provide online resources explaining the religious underpinnings of Mormon opposition to same-sex marriage.
These are results no one wants. And they are results the Arizona Free Speech Clause forbids. Yet these injurious results — government compulsion of artwork that violates artists’ core values — are what the Superior Court’s decision imposes on Joanna and Breanna.
Jeremy Tedesco, Jonathan Scruggs, and Samuel Green, in “Brush and Nib v. City of Phoenix” (June, 2018), 32–35.